Title of Thesis
TI ESTI STATE-TERRORISM
Critical Terrorism Studies and Human Rights Philosophy and Law
By Zoi Aliozi Cyclo XXV
Rome March 2013
Thesis submitted to the Faculty of Political Science, PhD Program in Political Theory, in total fulfillment of the requirements for the Doctoral degree in Philosophy.
Libera Università Internazionale degli Studi Sociali Guido Carli di Roma Luiss Guido Carli University of Rome, Italy.
Doctorate director: Dr. Sebastiano Maffettone Doctorate supervisor: Dr. Francesco Cherubini
© Zoi Aliozi, 2013
ΑΡΙΣΤΟΤΕΛΗΣ, Άπαντα, Τόµος 1, Πολιτικα 1, ΑΡΧΑΙΑ ΕΛΛΗΝΙΚΗ ΓΡΑΜΜΑΤΕΙΑ, ‘ΟΙ ΕΛΛΗΝΕΣ’, (190),
Εκδότης: Οδυσσέας Χατζόπουλος, 2008, (Σελ. 33-36).
*****
-‐Translation-‐
As in other departments of science, so in politics, the compound should always be resolved into the simple elements or least parts of the whole. We must therefore look at the elements of which the State is composed, in order that we may see in what the different kinds of rule differ from one another, and whether any scientific result can be attained about each one of them.
Aristotle, Politics, Book 1, Part 1.
Written 350 B.C.E, Translated by Benjamin Jowett, Batoche Books, Kitchener, 1999. p. 3.
i ABSTRACT
Three main parts comprise this dissertation:
Chapter II is an attempt to illuminate the general understanding of the phenomenon of State-terrorism, through a review of literature and available descriptions.
Chapter III is built on a philosophical aporetic path, and an enquiry on the concept of State-terrorism, while attempting to uncover its essence.
Chapter IV is a legal analysis of the implications surrounding the practice of State- terrorism, and an assessment of its prospect to become a subject of criminal law, built upon the recognition that State-terrorism is a form of terrorism; and since the latter is a punishable crime, I make the case that State-terrorism also requires to be treated, prohibited and punished by law with equal zeal.
This study is an attempt to answer the raw philosophical question ‘ti esti State- terrorism.’ Is a critical philosophical analysis of the concept of State-terrorism based upon an epistemological discussion, in an effort to re-formulate the question of terrorism, by making the case that State-terrorism is the mother phenomenon and root of all forms of terrorism.
My ambition is to contribute in our understanding of terrorism by revealing that, in ancient (and modern) Greek, which is the language of concepts and philosophy, the term terrorism literary means State-terrorism, and it belongs to the same family of words as democracy, aristocracy, autocracy and so on and so forth, since they share their second synthetic and suffix –cracy. An acknowledgment that may have the power to unlock a radically fresh comprehension of the term and subsequently the phenomenon of terrorism, if not re-define the whole concept by describing it according to the term’s original meaning. Under this logic, terrorism would refer to a form of government and a political system. A hypothesis that my thesis introduces into the philosophical dialogues on terrorism, since it has never before been discussed within these terms. State-terrorism is a forbidden term according to legal experts, however, cannot and should not be treated as a sterile term by political theorists and critical thinkers.
This thesis is a product of a philosopho-legal human rights based research, and is ultimately intended to become a contribution to the understanding of the phenomenon of globalized terrorism and the United Nations definitional struggles.
Keywords: State-terrorism, critical terrorism studies, philosophy, law, human rights.
ACKNOWLEDGEMENTS
This dissertation owes its existence to a number of people and institutions, all around the world. Firstly and mostly to my dear professor Sebastiano Maffettone, , and Director of my PhD program in Political Theory in LUISS University in Rome, for being such a great role-model and inspiration, for his priceless input in the expansion of my philosophical thought by introducing me to Rawls, as well for his support and benevolent help. I express my gratitude, for the chance the committee of admissions offered me with, through my placement within the PhD program, an opportunity that I wouldn’t be able to find in the Greek academia due to political reasons.
Likewise, I thank all my colleagues in my PhD program in Rome, for allowing me to become a part of this stimulating intellectual environment.
I deeply thank my thesis supervisor Dr. Francesco Cherubini of the Law Faculty in LUISS, who has always been there, with a benevolence that only great tutors possess.
I owe a lot to Judith Lichtenberg of Georgetown University’s Philosophy Department in Washington D.C., for supporting my visiting scholar’s appointment, which has meant a great deal for me and the progress of this thesis. My gratitude goes to Giovanna Borradori from the Vassar College in New York, for her insightful suggestions in the beginning of my research; to Professor Noam Chomsky of the MIT in USA, for his counsel and for the inspiration his work has been to me; to Costas Douzinas of the Birbeck College in London, UK, for the great input his critical legal studies work has had in my research; to Vasilis Politis Director of the Plato Center at Trinity College Dublin, for his generous contribution into my comprehension of Plato and Aristotle, as well as my understanding of the ti esti question besides the Socratic aporia; and to my dearest professor Anja Mihr of the University of Utrecht, who has been an enormous inspiration and help in proceeding with my PhD studies.
A big thank you is in order for my comrades and friends in Greece, for helping into expanding my understanding of the ancient Greek philosophy, and to all my colleagues that has had an input to my work, through their comments in conferences and symposia, all around the world. To ‘The Crit, A Critical Legal Studies Journal’ in USA, and the ‘Bajo Palabra Journal of Philosophy’ in Spain, that have published earlier versions of my research’s findings, and their editors that have assisted me into improving my work. The University Autonomous of Madrid and the Bajo Palabra Revista, that offered me space to discuss my ideas, within their philosophy conference, and for awarding me the 1st Prize for Young Philosophy Researchers in 2012, for an early version of an essay that came to shape Chapter III of this dissertation, and that has meant for me a great deal as far as motivation is concerned.
But most essentially, I must express my gratitude, from the bottom of my heart, to Xanthi and Savva Aliozi, my parents, for their unconditional love and support since the beginning of my academic journey, because without them nothing would have been possible; and to my older sisters Louiza and Eleni, for their emotional and financial support, and for the inspiration their mere existence constantly offers me.
Rome, March 2013 Zoi Aliozi
iii For
Xanthoύla Aliόzi, my heroic mother.
PREFACE
As a young international criminal and human rights lawyer, long before the initiation of my PhD research, I came across the legal paradox of having to deal with a harmful act, which fulfilled all the requirements for being classified as a crime, yet it wasn’t one, and I was directed by a number of celebrated legal experts, to consider as a legal orthodoxy the turning of a blind eye to this criminally harmful act, that was going un- punished due to a number of unjustifiable reasons. I was trained to work with criminal and wrongful inflicted harms on humans, that were by definition and according to basic penal legal theory punishable by law in any known penal system, and I knew from experience and practice of criminal law, that in cases that law has been unable to deal with a special instance falling within a category of criminal harms, there will always be another way to bring the case in front of a Judge, who by principle has a law-making mandate and is empowered to administer justice even where the law has been silent. Well, that is not the case with State-terrorism. I came across well-built walls, blocking every legal or philosophical justification I was trying to discuss with legal experts, practitioners or academics, walls that did not allow for any new, yet reasonable viewing of this phenomenon. I soon realized that this orthodox understanding of the concept of State-terrorism, was everything but orthodox (since the word means the correct way of thinking, from Greek ‘orthos’: right and ‘doxa’:
belief) and has been cultivated through centuries of misdirected jurisprudence, therefore I was unable to get convinced for the rightfulness of such an "orthodox"
approach the legal world was determined by. In other words, when I was putting on the "examination table" the crime of terrorism, which has been a well-established subject of criminal law, filling all the requirements by basic legal theory for the constitution of a crime, (like the actus reus and the mens rea) I observed that in cases where the perpetrator was to be found within the broader structure of an organized State, as if by magic the crime seized to exist.
My motivation was fuelled by this legal paradox, parallel to a philosophical understanding of the political implications inherent to this term, that came to add force to my drive, while my desire for further engagement with this research translated into my decision to pursuit a doctorate in philosophy, and make a slight disciplinary maneuver in my engagement with this area of study, while, maintain a multidisciplinary approach and methodology throughout my work.
v In ancient (and modern) Greek, the term terrorism means literary State-terrorism, etymologically, and by definition. In the language of political thought, through which all western political structures have based their constitutions and formed their polities, States, political parties, or ideologies, and that has been the medium for the structure of ideas into terms such as democracy, anarchy, politics and so on and so forth, in this language, the term terrorism always refers to State-terrorism.
This realization came to add into my determination to demonstrate that State- terrorism is not a fictional concept, or an empty term, but rather a real current danger that requires the attention of law, and the recognition of philosophy as a valid idea, and which is as deep-rooted and long-standing as the idea of the political State.
All the above reasons have inspired my desire to discover strong normative justifications that would convince my readers for what is obvious to me, and advocate for the urgent necessity for further scholarly engagement with this area of study, through the employment of both law and philosophy.
Throughout the following pages, I ask questions such as: What is State-terrorism? In one instance with philosophy as the protagonist, and in the other having law as the main source of analysis. Has international law (IL) become obsolete when it comes to terrorism and State-terrorism? Can State-terrorism become the subject of law? And in my struggle to comprehend State-terrorism, I ask: what is its essence?
In that sense, I proceed in an Aristotelian resolving of the basic elements that the subject of my research is comprised by, while in a way I deconstruct the language construction in order to see what, this terminological construction by the ancient Greeks, refers to. Because, I am visiting the ancient Greeks, in order to discover whether they had described this concept, or whether there was a term in existence, describing what today we call State-terrorism. Allow me to anticipate, that the ancient Greeks did have a term describing State-terrorism, and based on that discovery I proceed into an examination of that term that describes and refers to the idea, and concept of State-terrorism, in order to see whether it is possible to recover its original meaning, and discover its essence. I am asking ‘Ti esti’, because this question triggers a raw philosophical syllogism, that discusses the essence of the idea in question and is bound with questions of ‘horismos’ (definitions). Is deeper than a ‘what is’ enquiry, however in chapter II I am asking ‘what is’, in order to cover initially all the basic literature, and information that comprises our modern knowledge of the concept.
I have started working on the formation of this doctoral thesis on 2009. Undeniably, international law has failed to-date, to deal with this concept. Recently though, a turn of attitude took place, and gradually yet with determination, the UN through the negotiations of the Draft Comprehensive Convention on International Terrorism, began using bolder language when discussing State terror, and calling it by its name, using the so-far outlawed term: State-terrorism.
Allow me to point out that before this Ad Hoc committee, would be impossible to meet this term within the workings of international law, or even if it was mentioned, it would automatically be rejected as irrelevant, nonexistent, empty and legally absurd.
This new law into-making, according to the drafters, aspires into having extra legal weight, and of creating a definition of terrorism that would enjoy universal consensus and applicability, while is the first time that the law-makers have explicitly expressed an intention of including State-terrorism in the definition of terrorism, as another form of terrorism, which means that the prospect of becoming a codified international crime has become a realistic expectation, whilst its practice will be rendered punishable in a court of law, and also bearing the significance that a recognized political concept will be upgraded next to terrorism, as one of the most serious crimes, and threats to humankind, for the future generations and our civilization.
This is exactly, what I am striving into contributing to, and the point of my thesis. My true intentions are to provide strong justifications that will demolish the knowledge that is based on a neologism, and is constantly discarding any argument for the existence of State-terrorism as a valid concept, and ultimately to witness the international law’s recognition, of what has been so clearly obvious to me through the initiation of my research. However, there is an implied priority of discovery, directing my scholarly engagement with this concept, which is manifested through my claim that State-terrorism needs to be firstly treated by philosophers for the discovery of its essence, while adding into its definitional process, and then to become a subject of law, since the harm involved requires so, just as in the case of terrorism. As far as the firm denial of experts, to legally deal with this idea due to the alleged impossibility of defining it, allow me to say that State-terrorism might be hard to define, but "we know it when we see it."*
* As Justice Stewart held about definitional difficulties, in Jacobellis vs Ohio, 378 U.S. 184 (1964).
vii TABLE OF CONTENTS
ABSTRACT i
ACKNOWLEDGMENTS ii
PREFACE iv
TABLE OF CONTENTS vii
Lists of Acronyms, Graphs and Tables viii
1. CHAPTER I. INTRODUCTION 1
2. CHAPTER II. WHAT IS STATE-TERRORISM
2.1. REVIEW OF DEFINITIONS 10
2.2. TERRORISM 25
2.3. STATE-TERRORISM 36
2.4. STATE-SUPPORTED TERRORISM 45
2.5. METHODS OF STATE-TERRORISM 49
2.6. DEMOCRATIC STATE-TERRORISM 62
2.7. CONCLUSION 68
3. CHAPTER III. TI ESTI STATE-TERRORISM
3.1. PROLEGOMENA 75
3.2. THE ESSENCE OF STATE-TERRORISM 86
3.3. DECONSTRUCTION 106
3.4. CONCLUSION 116
4. CHAPTER IV. THE CRIME OF STATE-TERRORISM
4.1. INTRODUCTION 120
4.2. THE CRIME OF STATE-TERRORISM 122
4.3. LEGAL DEFINITION AND THE ICC 144
4.4. WAR ON TERROR 153
4.5. IMPUNITY AND IMMUNITY 165
4.6. CONCLUSION 175
5. CHAPTER V. CONCLUSIONS 182
REFERENCES
Bibliography 193
Other sources 199
Case-law 202
VITA 204
List of Acronyms
CL Customary Law
CSRT Combatant Status Review Tribunals (CSRT)
CTED Counter-Terrorism Committee Executive Directorate Dec Decision
ETA Euskadi Ta Askatasuna ("Basque Homeland and Freedom")
GA General Assembly
IL International Law
IHL International Humanitarian Law ICC International Criminal Court ICJ International Court of Justice
ICTY International Criminal Tribunal for the former Yugoslavia ICTR International Criminal Tribunal for Rwanda
IRA Irish Republican Army
OIC Organization of the Islamic Conference
Res Resolution
SC Security Council
SG Secretary-General
SCSL Special Court for Sierra Leone
UN United Nations
UNDHR Universal Declaration on Human Rights (UN) UNODC United Nations Office on Drugs and Crime
VS Versus
List of Graphs and Tables
Graph A, State-terrorism and Terrorism in bibliography 24
Graph B, the term State-terrorism in bibliography 24
Table of terminological development 90
1 CHAPTER I
INTRODUCTION
Everybody has something to say when the word terrorism sounds in a conversation. It is in every day’s news, in the phraseology of the media, and in the rhetoric’s of politicians all around the globe. Holds the highest place in the lists of emergency challenges in every governmental agenda, and has been characterized as an emerging vital philosophical debate, amongst other things. As far as the legal debates are concerned, I will be bold yet honest and say that chaos and procrastination hold by far the dominating status. It seems like terrorism has developed through time and practice an "immune system" against its legal analysis and criminal coding. Lawmakers and academics have repeatedly failed to efficiently deal with the criminal analysis of the act itself. Therefore, the concept of terrorism travels around linguistics, political science, philosophy and law without a nuisance, and even the International Criminal Court (ICC) failed till now, to include the crime of terrorism in its jurisdiction.1
The Preamble of the Universal Declaration of Human Rights, the most important and cited human rights treaty ever to come into existence, it clearly and prudently states, that the highest aspiration of the people is to have "freedom from fear…" and I quote:
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. 2
1 See: www.un.org/law/icc/statute/iccqanda.htm [Retrieved on 6 March 2011].
2 Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.
In terrorism, fear is the tool used for the realization of the desired political goals, and at the same time, fear is the harmful result of the criminal terroristic actus reus.
Yet, irrespectively of means and perpetrators, we are facing at an interference with the individuals enjoyment of fundamental rights necessary for the fulfillment of the persons natural desire for freedom and individuality, privacy and all the space and conditions that may render achievable her autonomy and dignity.
Professor Raz, in his significant theorizing in the ‘Morality of Freedom’3 discusses that in order for an individual to reach full enjoyment of her natural rights, and in order for a society to get real equality for the people, then the State should provide the same opportunities for all, and all the basis and ground for her to make the choices she wants at the different stages of her life. While it seems to me that if one considers the traditional role of the liberal State to ensure Justice, would be rational to conclude that a terrorist State is in breach of its entire expected purpose as a political structure.
The State in the case of State-terrorism, belongs to the opposite reality than the one proposed by the liberal ideals, and has abandoned its obligation and duty to protect.
Likewise, the human rights theory in the times of globalized terrorism has been in certain aspects more damaged by its self-proclaimed protectors, than from terrorism itself, whilst has been the object of a systematic attack by scholars, as for instance certain pro-torture advocates, who by using the alibi of national security, strive to establish the view that wants human rights to be non-applicable utopic ideals, which under no circumstances could trump the necessity for national security. But scholars in the other side of the spectrum claim that: "human rights will come to an end, if we do not re-invent their utopian ideals."4
3 Raz, Joseph, ‘The Morality of Freedom’, University of Oxford, 1988.
4 Douzinas, Costas, ‘the end of human rights’, Hart publishing, Oxford, 2000. In the book-cover.
3 Conversely, this dissertation is about protecting and ensuring human rights for the future generations, it is a human rights inspired research, based on the ideals that the cultivation of a human rights culture has to offer justice-wise. As it has been asserted, prevention of human rights violations in the future can be an important instrument.
"Prevention that also means to address the root causes of systematic human rights violations."5 In this sense, it is vital and essential to address the practice of State- terrorism as the roots and cause of systematic human rights violations.
However, it is not in my intentions to deepen my discourse on human rights theory if it is not related to the central topic of my dissertation, which is State-terrorism. Yet, the mutilation that human rights are suffering due to the practice of State-terrorism, makes it impossible not to address their fundamental role in my research, and motivation which underlies my work.
Furthermore, international consensus on a legal definition of terrorism, or of State- terrorism, State-supported terrorism6 or any form of terrorism for that matter, still has not been attained. There has been an overabundance of political and legislative instruments dealing with terrorism and counter-terrorism, in a domestic and an international level, but very little ink on State-terrorism, except in cases of State- supported terrorism, or State terror. Now, what is the difference between State- supported and State-sponsored terrorism, or State terror with State-terrorism might be a useful way to start reflecting on our examination of the implications surrounding the concept of State-terrorism. According to my thesis, the main difference is in the details, and in the milder nature or less negative charged terms, which all the surrounding State-terrorism language constructions bare. To proceed in a recognition
5 Nowak, Manfred, ‘Introduction to the Human Rights Regime’, The Raoul Wallenberg Institute For Human Rights Library, Martinus Nijhoff Publishers, Leiden/Boston, 2003, p. 341.
6 See: www.icc-cpi.int/home.htmlandl=en [Retrieved on 19 October 2012].
of State-terrorism through its codification in international law, would automatically render possible for a State to be accused as a terrorist. The effect on the development of international law, in such a case, could be negative amongst other things, since it could be translated into the unwillingness of the States to give consensus on agreements, or in more practical terms proceed with this new counter-terrorism international cooperation flourishing regime, bearing the harshest and most severe punishments, and para-legal procedures for the terrorists. However, in all other cases, like State-supported terrorism there is an implied indirect connection of the State with terrorism.
A bright and noteworthy exception to the above-mentioned legal reality, is the Arab Convention on Terrorism, which by Article 3, forbids the State from committing acts of terrorism.7 While similar treatment of the concept by law, can be found in the Organization of African Union’s Convention on the Prevention and Combating of Terrorism,8 two regional treaties that assume the responsibility and duty upon the lawmakers to prohibit State-terrorism by law.
The crime of State-terrorism, exists in national and regional legislation, but does not enjoy a universal consensus in international law, and especially in the Western legal systems. While it may seem impossible for a State, that has criminalized State- terrorism to actually move proceedings against its own officials and government, the existence of an active law, may prove for the opposite. It should be highlighted that the regional laws have in some sense the same function as international law, since is law applicable over a group of States in a geographic Region, and accordingly, one
7 Arab Convention on Terrorism, Part Two, Principles of Arab Cooperation for the Suppression of Terrorism, Chapter I, The Security Field, Section I, Measures for the prevention and suppression of terrorist offences: Article 3.
8 Organization of African Union Convention on the Prevention and Combating of Terrorism (Algiers July 1999).
5 State could initiate judicial proceedings against another and put forward a claim, which ideally shortly, will be the case in the international legal arena as well.
Nonetheless, its existence in a legally binding document, as the Conventions mentioned above, prove its actual existence in some penal systems, as a crime. Hence, this is to be dealt with later in my dissertation, in Chapter IV and in relation to the key legal issues.
Allow me to clarify that the present thesis, parallel to a critical philosophical elaboration of the concept of State-terrorism as a political system, seeks to deal with terrorism from a different perspective, that is to say, with terrorism as a criminal act perpetrated by the State, of the government of the day. Vivid examples are also to be taken from the contradictory relationship of human rights and counter-terrorism. It is not an easy subject to work on, yet it is my solid belief that the challenges surrounding its shadowed and un-clarified areas, impose a duty upon academia to address the idea of State-terrorism, and hopefully be of assistance to the forthcoming birth of a complete convention on international terrorism by the United Nations, whilst actively to quash the silent approval of the international practices so far, that are eclectically criminalizing the act, depending upon the perpetrator.
In other words when the same terrorist act is committed by a State, there should be the same confrontation and punishment for the crime by an appropriate tribunal, as if it has been committed by a private individual or a group of individuals.
In my view, the absence of the crime of State-terrorism from a complete convention of international terrorism, will be a great overlooking in the part of the lawmakers.
The reality is that we need a full and complete law about terrorism. The burden as I see it, is upon all intellectuals, and especially on experts of legal philosophy, to reflect on the matters and challenges emerging from this phenomenon, and clarify as well as
define the concepts adequately, and this is where my research aspires into becoming a small contribution.
This dissertation’s main mission is to form a critical analysis of the concept of State- terrorism, to outline the challenges that carries from origin, as well the ones emerged by its new globalized form, and always in relation with terrorism as a criminal act, to analytically examine its status within the criminal law’s terrain. It is inevitable, any project on State-terrorism to be surrounded by paragraphs about terrorism itself.
There has been a lot of ink spilled about terrorism, but in contrast, the bibliography on State-terrorism is limited and insufficient. I will try to outline the main difficulties and sub-problems of this shadowed area of international law, and by avoiding arguing from a conspiracy theories side, I will try to efficiently deal with the main problematics and dilemmas that a law expert is bound to face, when working with these multidimensional and polymorphic, politically infused crimes.
It is imperative to note that, terrorism as a phenomenon of the globalized era that we are bound to live in, is a continuously evolving concept, a fact that holds a contributing role, in the repeatedly postponing legal environment surrounding the concepts of terrorism and State-terrorism, and the miscomprehension of their dissimilar routes, and allow me to anticipate: not so different roots.
It is a quest, this research, a journey through theory and practice, utopic ideals and undeniable barbaric realities, through the spectrum of the different but interlinked disciplines of Law and Philosophy. Philosophy of Law, International Criminal Law, International Human Rights Law and Humanitarian Law, are the tools and at the same time guiding instruments for the realization of this thesis. Psychoanalysis is also very important in considering the issues in question, psychoanalysis as a legal theory in which the law plays a formative role. "For psychoanalysis the subject, rather than
7 being a pre-given substance, or a fully constructed entity, is reflectively and inter- subjectively constituted."9 Since State-terrorism, is targeting to the mental element of its victims, using the tool of fear as means of achieving its goals, then arguable, as fear is an emotion, it can only be viewed adequately by subjective criteria. In this sense, psychology and psychoanalysis have a rather important role to play, in our understanding of the phenomenon of terrorism. As it has been argued, psychoanalysis and specifically its Lacanian revision are firmly becoming the newest great frontier for jurisprudence.10 Hence, this is to be dealt with efficiently within philosophical terms in chapter III.
From a human rights perspective, it is arguable that we are witnessing the diminishment of the value and prominence of human rights. Humanity made big steps towards the realization of a universal system of values and rights, rights that every human being is entitled by birth, and minimum standards and procedures for their universal and regional protection, undeniably, values that can lead humanity to a better future. It seems to me that empowerment and the dignity of the individual is the very essence of human rights, and participation, non-discrimination and accountability, arguably, its most important elements. Hence, witnessing the new security emergency plans and governmental practices towards the realization of the desired absolute security, through the mobilization of totalizing control’s theoretical paths and techniques, under the heading of the ‘War on Terror’ for instance, and the flourishing global counter-terrorism policies, one cannot omit to admit, that the States are pushed from protection of rights, towards suppression of rights agenda.
After the 11 September 2001 terrorist attacks in New York, the United Nations Security Council unanimously adopted resolution 1373, which included obligations
9 Douzinas, Costas, ‘the end of human rights’, Hart publishing, Oxford, 2000, p. 297.
10 Idem.
imposed on all States to criminalize assistance to terrorists, deny financial support and safe haven to terrorists and share intelligence about possible terrorist incidents. Res 1373, compels all States to outlaw help to terrorists, but it is common knowledge and a "public secret" that there are so many States that provide assistance to terrorist organizations, including some of the great powers of the so-called developed world.
Allow me to anticipate, that considering the available information on State-terrorism, one can innocently come to the conclusion, that the establishment of a proven act of terrorism, committed by the State, constitutes State-terrorism, and as such requires to be prohibited and punishable by law, however, it is not as simple as that, and a discussion based on the above assumption will form a large part of my dissertation.
In the pages to follow, I proceed into a philosopho-legal examination of our modern knowledge of the concept of State-terrorism, and throughout Chapter II in a review of literature and available descriptions of this phenomenon. I am attempting to distil the common paramount in all definitional attempts of this idea, with the intention to construct a working definition of State-terrorism, which could serve as the preliminary comprehension of its functions, characteristics and basic elements.
This pre-meditated method intents to provide the bridge for proceeding in Chapter’s III philosophical embark and a quest for considering whether State-terrorism could be viewed through an Aristotelian spectrum, directed into discovering its essence or substance, and these elements that without which would seize to be what it is.
By expressing the question ‘ti esti State-terrorism’, I try to initiate a fresh understanding of its definitional structure and reflect on the issues from an "horismos"
point of view, while utilizing the state of aporia and the Platonic guidance, that is generously given through his dialogues. I am not so ambitious as to say in my introduction that I have discovered all the truth of State-terrorism by the utilization of
9 the ancient Greek teachings, however, I am attempting to line up certain syllogisms that have been inspired by the Ancient Greek fathers of philosophy, and this should be acknowledged at this early stage in my text, since their teachings and methodological processes of analytical examination of knowledge underlies my whole work.
Moreover, I proceed in Chapter IV in placing law as the protagonist, and afterward the previous chapters which deals with State-terrorism from a definition point of view through explanatory, epistemological and comprehensive attempts, I progress into a legal discourse, which consists by a series of interchanging maneuvers from the theoretical into the practical elucidations of the legal issues that seem crucial to my elaboration.
As I said earlier in my preface, if terrorism is a prohibited and punishable crime, then one deems necessary to make the exact same case for State-terrorism, which is terrorism in another form, since in reality the only factor that is different if we compare the two harmful acts, is the perpetrator.
CHAPTER II
WHAT IS STATE-TERRORISM
2.1. REVIEW OF DEFINITIONS
This part of my dissertation aims into forming an introductory review of the concept of State-terrorism. It is an attempt to list the main issues around this phenomenon, and by examining the "mainstream" descriptions, definitions and available information, to prepare the soil for our comprehension of the idea of State-terrorism. It is formed by a review of literature, parallel to an elaboration of the most relevant to my argumentation issues rising from the existing knowledge, information and relevant data. This is a multidisciplinary chapter, with philosophy and law to hold the protagonist roles in my discourse’s syllogistic methodology, while sociology and international relations to also be evident as methodological utensils.
In that sense, I proceed into an elaboration and review of a number of up-to-date descriptions of State-terrorism.
For instance:
Establishment terrorism, often called State or State-sponsored terrorism, is employed by governments—or more often by factions within governments—
against that government’s citizens, against factions within the government, or against foreign governments or groups. This type of terrorism is very common but difficult to identify.11
In this description, State-terrorism is described as the type of terrorism that is employed by governments. The problem though is that neither terrorism enjoys a
11 See: www.britannica.com/EBchecked/topic/736034/establishment-terrorism [Retrieved on 4 December 2012].
2.1. REVIEW OF DEFINITIONS 11 definitional consensus, which makes our understanding as anemic as before.
However, the basic elements of terrorism have been very well identified, and codified through law, which makes it a matter of time for an international consensus on a single legal definition to come into existence. So, if we take for granted that terrorism is the instrumentalization of terror for achieving further political goals, then State- terrorism encompasses the same elements with the difference that is being initiated and perpetrated by State-actors. This description recognizes that this is another type of terrorism, which is very common, however it is difficult to identify. Undeniably, it is terrorism that we are dealing with, yet in another form, or as the definition cited states: another type, however, the difficulty to identify it, is the crucial point that needs to be highlighted. The identification of State-terrorism is an impossible task giving the current international legal regime. It seems to me that identifying the practice, or actus reus, could be as problematic as identifying the mens rea, and irrefutably the perpetrator.
Moreover, State-terrorism has been described as terrorism from above, in contrast with the traditional understanding of terrorism that is described as terrorism from below, and I quote:
Scholar Gus Martin describes State-terrorism as terrorism ‘committed by governments and quasi-governmental agencies and personnel against perceived threats’, which can be directed against both domestic and foreign targets. The original general meaning of terrorism was of terrorism by the State, as reflected in the 1798 supplement of the Dictionnaire of the Académie française, which described terrorism as systeme, regime de la terreur. Similarly, a terrorist in the late 18th century was considered any person ‘who attempted to further his views by a system of coercive intimidation.’ The terms ‘establishment terrorism’, ‘terrorism from above’
(as opposed to ‘terrorism from below’, terrorism by non-State groups), and
‘structural terrorism’ are sometimes used to denote State-terrorism.12
12 See: www.princeton.edu/~achaney/tmve/wiki100k/docs/State_terrorism.html [Retrieved on 30 July 2012].
This descriptional attempt, also takes for granted that State-terrorism is a form of terrorism, that it is being committed by the government or its agencies, and which as such could be directed against either domestic or foreign targets. As it is emphasized by Gus Martin, the original meaning of terrorism was State-terrorism, allow me to anticipate that I proceed into a detailed discussion of that fact in chapter II which addresses the original meaning of the term, while going further back than the French enlightenment, and into the ancient Greek construction of the term terrorism, which signified State-terrorism etymologically and by definition.
Whereas, a description of State-terrorism from the Judge’s Ernesto Garzón legal perspective, refers to State-terrorism as a political system, which abstracts the administration of justice by unconstitutional alterations of its judicial activities:
State-terrorism is a political system whose rule of recognition permits and/or imposes a clandestine, unpredictable, and diffuse application, even regarding clearly innocent people, of coercive means prohibited by the proclaimed judicial ordinance. State-terrorism obstructs or annuls judicial activity and transforms the government into an active agent in the struggle for power.13
The emphasis in this illuminating description of State-terrorism, is placed on the annulment of the judicial activity, which undeniably is a symptom of a diseased polity. The government of the day is transformed into an active agent in the struggle of power, through the application of unconstitutional and illegal coercive means, which are being applied indiscriminately to innocent citizens. It seems to me that the deformation of the judicial system and the elimination of the rule of law is the crucial points that needs to be emphasized in interpreting this portrayal of State-terrorism.
Nevertheless, the above descriptions have not been chosen randomly, they are meant to create the soil where my dissertation’s understanding of the concept of State-
13 See: www.derechoschile.com/basicos/definiciones/BasicdefStateterrorism.htm [Retrieved on 03 September 2012].
2.1. REVIEW OF DEFINITIONS 13 terrorism will try to flourish, and parallel to that, to demonstrate the mainstream information on the narratives of the phenomenon of State-terrorism through diverse disciplinary viewing. It is noteworthy, that in all mentioned portrayals, the main elements of the idea of State-terrorism or its core characteristics remain the same, and that is summarized in the phrase: terrorism committed by the State. Correspondingly, in my view, all the current understanding, information, legal analysis and scholarly work on terrorism can be utilized in the quest of comprehending State-terrorism.
Since it is terrorism that we are dealing with, with the main difference and special unique characteristic, which has the crucial role of causing its differentiation through other forms of terrorism, to be allocated in the identification of the perpetrator.
Yet, this easy access to a plethora of information about State-terrorism, demonstrates that this is not an unheard or unknown idea, contrary to the "orthodox" legal scholarship, which classifies State-terrorism as a nonexistent and meaningless concept.
Before proceeding, it should be stressed that these descriptional endeavors cited above, have no legal status or applicability in a court of law, but it seems to me that can assist us, in illuminating our understanding of the notion itself.
In my view, the term State-terrorism is probably more political than legal, yet according to my thesis, terrorism as well is a more political than legal term, without this acknowledgment to diminish in any way its value as a subject of criminal law, since the crime of terrorism is an undeniably important and in an unprecedented manner trigger in Justice’s processes.
Nonetheless, for the purposes of my overall thesis, my elaboration needs to be restricted to events and situations of the sort, that raise relevant philosophical and
political questions, complementary to a consideration of the key legal matters that have come before tribunals, domestic and international.
Allow me to anticipate, that in the chapters to follow, I intent to examine the concept through a philosophical dialogical discourse, as well as devote a chapter into a legal treatment of its manifestation as a crime. A crime which should be noted that, ideally all it requires is to occur just once in order to move proceedings for its investigation, and prosecution of the fault-bearers. This is a well-established case with terrorism in any penal system, while in the paradigm of State-terrorism, there is an implied pre- requisite that if this crime is to be recognized in law, must be manifested as a systematic or repeated practice of the State-actors, and as an official public policy. To prove that certain methods are part of an official policy is not without its difficulties, considering that in most cases it is functions within a clandestine net of State backed- up institutions and groups of State-actors. What should be highlighted though, is that this legal paradox, is contrary to the basic theory of law, and imposes upon this possible crime a problematic allocation of the burden of proof.
The conception of ‘systematic’ was described by the International Criminal Tribunal for Rwanda as: "thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources."14 What should be noted is that, "systematic practice is at hand if acts are carried out pursuant to an explicit or implicit plan or policy."15 Such a policy can be presumed from the fashion in which an act happens. Nonetheless, it suffices that a single act, committed within the framework of a systematic attack, has the potential to demonstrate such a policy.16
14 See: Prosecutor vs Jean-Paul Akayesu, Case No. ICTR-96-4-T para. 580.
15 I.L.C. Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission on the Work of its 48th Session, 6 May – 26 July 1996, G.A.O.R., 51st Sess., Supp.
No. 10, 30, U.N. Doc. A/51/10.
16 See: Prosecutor vs Dusko Tadic.
2.1. REVIEW OF DEFINITIONS 15 Whereas, if a multiplicity of victims are targeted, we talk about a widespread attack.17 It is notable that such a large-scale attack encompasses the cumulative effect of a series of inhuman acts to a singular effect of one act of extraordinary magnitude.
Consider for instance, the September 11th 2001 attack in New York, or the paradigm of an atomic bomb, such as the bombings of the cities of Hiroshima and Nagasaki in Japan.
Furthermore, it is interesting and useful to have a read of the sociological18 definition of the concept, which asserts that:
State-terrorism is a systematic governmental policy in which massive violence is practiced against a given population group with the goal of eliminating any behavior that promotes political struggle or resistance by members of that group. Any State that engages in terrorism is not a protector of citizens; rather, it violates civil and human rights through assassinations, mass killings, and imprisonments, often along with a display of corpses in the streets so that the remaining population will accept the violent State out of terror and intimidation. The main assumption of such a State is that it can control the population by destroying its leaders and the culture of resistance.
States that fail to establish hegemony by accountable democratic political order are unstable and insecure; hence, they engage in State-terrorism.19
This definition, acknowledges the damage that human rights are being subjected to, in States that employ governmental policies that could be classified as State-terrorism, and explicitly highlights the impossibility for such a State to assume its role as a protector of its citizens, in accordance to a natural social contract, which is expected and implied in the modern liberal, citizen-State relationship. While is significant that it advances into a detailed description of what the methods of State-terrorism usually are, such as violent policies prescribed to spread terror and intimidation throughout
17 I.L.C. Draft Code of Crimes Against the Peace and Security of Mankind. See:
untreaty.un.org/ilc/texts/7_4.htm [Retrieved on 22 May 2012].
18 Asafa Jalata, ‘State-terrorism and Globalization: The Cases of Ethiopia and Sudan’, International Journal of Comparative Sociology 2005; 46; 79. See: cos.sagepub.com/cgi/content/abstract/46/1-2/79 [Retrieved on 21 November 2012].
19 Oliverio, A. ‘The State of Injustice: The Politics of Terrorism and the Production of Order’, International Journal of Comparative Sociology 38(1-2): 48-63. 1997.
the population, or specific groups within the population, even by the display of corpses in the streets. The last point is one of the most fruitful depictions of State- terroristic methodology. While it is interesting to consider that, a murder is a well- recognized crime, which is codified and punishable by criminal law, so one could argue that we do not need to re-describe what an intentional killing requires for becoming punishable in an appropriate court. Which is the main argument against the codification of State-terrorism through criminal law. Since it is argued in exactly the same manner, that criminal law has all the tools and means to deal with these harmful acts, irrespectively of what they are called or named in the judicial procedure. In simple terms, the Judge does not need a law on State-terrorism to put the ones responsible for atrocities behind the bars.
However, in my understanding, when a murder, or unlawful intentional deprivation of an innocent life, is being committed first and undeniably, with the mens rea of causing death which is required for the constitution of murder, but also with the ultimate mens rea (guilty intention) to intimidate and spread terror within a population, and then the same criminal behavior, or crime is being utilized in such a way, as to deliver further political objectives, and realize additional political goals through the manipulation of the peoples by the inspiration of anxiety, fear and consequently by establishing a state of terror, then the judicial process is being misdirected if its practitioners insist in calling it a simple murder, and are satisfied by prosecuting the perpetrators as common murderers.
It is an obstruction of Justice to refuse to call State-terrorism by its name in such a case, and all the relevant cases falling within this category. It is most of all not fair, and fails the purposes of Justice, and will in a way, normalize these behaviors since law continues to perpetually allowing them to go unpunished. I should also mention at
2.1. REVIEW OF DEFINITIONS 17 this point the satisfaction of victims, their families, their communities and the general public, which requires the naming and shaming in certain cases of the perpetrators and of their methods, as part of the Justice’s journey to fulfillment of her purpose. A detailed discussion of the legal issues is to follow in chapter IV, yet, I must note that terrorism carries heavier sentences than murder, which is another reason justifying my claim for the need to introduce State-terrorism in the administration of Justice.
It should be obvious by now, that my research’s intentions, go beyond a sole theoretical comprehension, and into contributing to the evolvement of the legal regime covering this area of study. In that sense, legal issues and relevant case-law can be retrieved from the proceedings of the Nuremburg and Tokyo trials, the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, or for Rwanda, and other courts mandated with investigating and moving legal procedures against perpetrators of the most serious crimes, in occasions the UN, as well as enforced disappearances, extra-judicial killings, torture and rape, are all constituting relevant case-law. Various demonstrations of controlled governmental practices to terrify, either by way of retaliation or to defend national interests have generated numerous examples of the methodical use of terror, or the toleration of terror by State actors, or of one ethnic group against another. Genocide is just one example.
A very interesting discourse has been articulated by Grossman, who argues that the implications of State terror go beyond the directly foreseeable harms:
Terror, domestic or cross-border, may be unleashed by dysfunctional government or by the venality of rulers as an instrument of policy or by inability to govern: the Khmer Republic, Sierra Leone, Liberia, Bosnia, Afghanistan, Iraq, Ivory Coast, Sudan, Somalia, Rwanda, Haiti and, arguably, Zimbabwe at various times are examples, in no particular order.
Non-State actors like the Lord's Resistance Army in Uganda and warlords in a number of other countries are subsets of the foregoing. To a greater or
lesser extent, such terror will have overseas implications, economic, political and demographic.20
The undisturbed perpetual practice of this criminal behavior has so many side-effects, that any attempt to list them would be in vain, however, an academic commitment for further scholarly engagement with this area of study is necessary and essential, since this practice should be prohibited by law, and punished accordingly. The time of the immunity of the perpetrators due to their high ranked offices is coming to an end, and it should be acknowledged that, the human rights regime has contributed greatly to that legal improvement. International law is developing and evolving in an unprecedented rate, yet, just as terrorism has been described as one of the most serious crimes and threats to our civilization, State-terrorism as well deserves a place in the same list. It seems to me that the constant amendment of our legal thought on terrorism, in absence of the term State-terrorism, is creating an even cloudier landscape, for both terms, which is blocking our conception of their means and ends.
Some scholars argue that, by trying to establish and include the crime of State- terrorism in a complete international convention on terrorism, will lead the international community to a dead-end, and lead to the further delay of an international consensus; "…a comprehensive convention should not engender another form of terrorism: State-terrorism."21 Still, even these criticisms are indirectly recognizing that State-terrorism is another form of terrorism, and therefore contribute to the acknowledgment of the necessity for further study and scholarly elaboration.
It is asserted that, governmental or State terror, is what sometimes is referred to as terror from above, namely where a government terrorizes its own population to
20 Grossman, Andrew, ‘A Research Guide to Cases and Materials on Terrorism’, Hauser Global Law School Program, New York University School of Law, May 2006. See:
www.nyulawglobal.org/globalex/Terrorism.htm [Retrieved on 28 June 2011].
21 Saleh Elmarghani (Libya), Ad Hoc Committee on Assembly, Resolution 51/210, 38th Meeting (AM).
2.1. REVIEW OF DEFINITIONS 19 control or repress them.22 These actions usually constitute an approved policy by the government of the day, and make use of official institutions such as the judiciary, police, military, or other government agencies and institutions. It has been observed that in most cases, the government, which also controls the judiciary, makes changes to legal codes that permit or encourage torture, killing, or property destruction in pursuit of governmental policies.23
Consider for instance the Nazi Germany era, which next to Stalin’s Russia and/or the Israeli government, could provide a "handbook" of methods, tools and practices that constitute State-terrorism. After the Nazi assumed power, their official Nazi policy was aimed at the deliberate destruction of "State enemies" and the subsequent intimidation and terrorization of the rest of the population. In the same line of reasoning, Stalin's "eradications" of the 1930’s, are examples of using the machinery of the State to terrorize a population. The methods his administration used, included such actions as rigged show trials of opponents, punishing family or friends of suspected enemies of the regime, and extra-legal use of police or military force against the population.
I will agree in most part, with Ariel Heryando’s working definition of State-terrorism, under which, he describes it to be a series of State-sponsored campaigns that induce intense and widespread fear over a large population, involving some basic elements.
Namely:
i. the fear is derived from severely violent actions conducted by State agents or their proxies;
ii. these actions are directed against selected individual citizens (primary victims);
iii. these individuals are selected as representatives of one or more social groups (target population) which are often publicly identified;
22 See: www.terrorism-research.com/State/ [Retrieved on 14 July 2011].
23 See: Prosecutor vs Dusko Tadic, Case No. IT-94-1-AR72 para. 654 (current customary International law takes also into account, forces that are not part of a legitimate government, but nonetheless have de facto control over defined territory).
iv. the victimization of the selected individuals, their representative status and the motives for the violence are publicly exposed in order to spread fear and uncertainty among the wider target group against whom similar violence can take place in an unpredictable future;
v. consequently the general population reproduces and elaborates the image of violence and intense fear among themselves.24
Whilst, it seems to me that since State-terrorism is a multidimensional, polymorphic and constantly developing phenomenon, any attempt to construct a list categorizing the basic elements of the methods and tools of its manifestation, would be more successful if it referred to specific case studies, like Heryando referred to Indonesia, in other words it seems to me that an attempt of that nature should not and cannot aspire into referring in the concept in its totality.
In that sense, a legal consideration of that sort of a definitional attempt would be bound to fail, since law is by essence striving into describing an unlawful act by anatomizing its core elements, that may be common to all its further different forms or manifestations. For instance, to talk about terrorism in a legal language, we would say, that terrorism is any act that by employing terror has the intention of achieving a political goal. So, these core elements, namely (a) the terror and (b) the political goal, are the core or basic elements that all terroristic acts share.
Trailing this logic, one could argue that the same applies to State-terrorism, although the differentiation of the perpetrator is necessary and important, so in the case of terrorism the perpetrator can be found within a group of non-State actors, while in State-terrorism the perpetrator can be found within a group of State-actors. It seems plausible to argue that, other than the perpetrator factor, we are talking about the same core elements or basic essentials in both concepts, while allow me to anticipate that a thorough consideration of these matters is located in chapter III.
24 See: Heryanto, Ariel, ‘State-terrorism and Political Identity in Indonesia Fatally Belonging (Politics in Asia Series)’, Routledge; 1st edition, December 16, 2005. p. 19.
2.1. REVIEW OF DEFINITIONS 21 Nonetheless, by reflecting on the legal issues of this concept, is agreeable, that to be found liable of criminal responsibility, of a crime as multidimensional as terrorism, would not require to prove one actus reus, as for the crime of murder, that all it requires under criminal law, is to prove the actus reus of murder, which is the actual act that resulted to the death, and the mens rea of the crime which is the otherwise called, guilty mind, that is to say, that the burden of proof is on the prosecutor, who is required to prove that the accused plaintiff had in mind the intention to kill.
State-terrorism should follow the paradigm of the crime of terrorism, which does not and cannot require a specific and codified mens rea, since the multidimensional spectrum that the perpetrators committing acts of terrorism, form a plethora of different intentions. As it has been argued, in terrorism it is not only guilty the one that pulls the trigger, or presses the button for a bomb to be activated and explode.
Terrorism is a criminal activity that requires accomplices, that demands a whole chain of interacting links to be mobilized, and/or a net of different factors, playing a role in the process of achieving a political goal, to act accordingly.
The real problematic of actually discussing terrorism, State-terrorism, and State- supported terrorism, and attempting to adequately define these politically infused crimes, I believe is deriving from the fact that the mere attempt of defining them, implies the exclusion or inclusion of acts that may constitute or not terrorism.
It is noteworthy though, that a codification would require a listing with the absolute word of law dictating, when and how crimes that fall within that category should be prosecuted and punished. While that could also have an adverse effect on the administration of justice, since it is the job of the lawyers to manipulate these lists and find justifications for excluding their clients from prosecution, like in the case of powerful politicians with the ability to contract good and high-priced lawyers.
It might be better in the case of terrorism and State-terrorism, for the law to stay flexible and emotional, while working within the purposes and guiding tools that the legal precedent has to offer, which requires for the consideration of past case-law and judicial decisions that may have faced similar legal questions in a court of law.
In that way, one could argue that when you see a crime of State-terrorism you could identify it as being one, you do not need a full description of every detail, but mainly of the basic elements that this crime could carry in order to be characterized as being State-terroristic.
The same would apply for terrorism, since the international community has been unable to date, to reach consensus on a single definition of terrorism, or even treat State-terrorism as a valid concept and crime, mainly because they focus on issues that makes an agreement between the signatory States impossible. Like who could be labeled as a terrorist or whether State’s activities employing violent methods would classify as tools of State-terrorism and so on and so forth.
Imagine if legal practitioners had the same debate over who could be accused as a murderer, that seems an absurd example, since anyone that could commit murder in times of peace, with the intention to kill can be an accused murderer. Though, the same absurd case is a reality with the debate over terrorism and State-terrorism.
What I mean is, that since terrorism, as a crime, can be achieved by numerous ways, and since it is evolving, and developing different forms and actus reus, as well as mens reas, day by day, then it could be argued that keeping the crime flexible in its constitution and establishment, might serve legal practitioners as an asset in the administration of justice.
On the other side of the coin though, this flexibility of our legal understanding of the crime of terrorism, it could also lead legal practitioners in misinterpreting the
